Citation Nr: 0008843
Decision Date: 03/31/00 Archive Date: 04/04/00
DOCKET NO. 94-21 793 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Sioux Falls, South Dakota
THE ISSUES
1. Entitlement to an increased rating for left knee
disability, currently evaluated as 30 percent disabling.
2. Entitlement to an evaluation in excess of 10 percent for
right knee disability.
3. Entitlement to an evaluation in excess of 20 percent from
April 14, 1993, to February 20, 1996, and in excess of 40
percent from February 21, 1996, for low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Tierney, Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to May
1969.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a February 1994 rating decision of the
Department of Veterans Affairs (VA) Medical and Regional
Office Center (M&ROC) in Sioux Falls, South Dakota. In May
1997, the Board remanded the three issues currently on appeal
for additional development. The case was returned to the
Board in October 1999. The requested development has been
completed and the issues are now ready for appellate review.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the claims on appeal has been obtained.
2. The veteran's left knee disability is manifested by
arthritis with limitation of flexion to 15 degrees and
limitation of extension to 20 degrees or less.
3. During the period prior to April 16, 1999, the left knee
disability was also manifested by moderate instability; from
April 16, 1999, no instability or subluxation of the left
knee is shown.
4. The veteran's right knee disability is not productive of
instability, subluxation, limitation of flexion to less than
45 degrees or limitation of extension to more than 10
degrees.
5. Prior to February 21, 1996, the veteran's low back
disability was productive of functional impairment which more
nearly approximates moderate than severe.
6. From February 21, 1996, the veteran's low back disability
has been productive of severe impairment, but more than
severe impairment is not shown.
CONCLUSIONS OF LAW
1. The veteran's left knee disability warrants a 30 percent
evaluation based on arthritis with limitation of motion;
during the period prior to April 16, 1999, the left knee
disability also warrants a separate 20 percent evaluation
based on instability. 38 U.S.C.A. §§ 1155, 5107(a) (West
1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5003, 5010, 5256, 5257, 5260, 5261, 5262
(1999).
2. The criteria for a rating in excess of 10 percent for the
right knee disability have not been met. 38 U.S.C.A. §§
1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260,
5261 (1999).
3. The criteria for a rating in excess of 20 percent for the
low back disability from April 14, 1993, through February 20,
1996, or an evaluation in excess of 40 percent for low back
disability from February 21, 1996, have not been met. 38
U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2,
4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010,
5289, 5292, 5293, 5295 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that the veteran's claims are well
grounded within the meaning of 38 U.S.C.A. § 5107(a).
Further, the Board is satisfied that all relevant facts have
been properly developed and that no further assistance to the
veteran is required to comply with 38 U.S.C.A. § 5107(a). In
this regard the record reflects that the M&ROC has
satisfactorily completed the additionally requested
development set forth in the Board's May 1997 remand.
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999)
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board
has reviewed all evidence of record pertaining to the history
of the veteran's service-connected left knee, right knee, and
low back disabilities. The Board has found nothing in the
historical record which would lead to the conclusion that the
current evidence of record is not adequate for rating
purposes. Moreover, the Board is of the opinion that this
case presents no evidentiary considerations which would
warrant an exposition of remote clinical histories and
findings pertaining to these disabilities.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1999). The Board
attempts to determine the extent to which each of the
veteran's service-connected disabilities adversely affects
his ability to function under the ordinary conditions of
daily life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1,
4.10 (1999).
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
I. Evaluation of Left Knee Disability
Facts
The veteran initially filed a claim for service connection
for left knee disability in May 1969 and service connection
for post-operative residuals of a torn medial meniscus of the
left knee was granted in a rating decision of July 1969. A
10 percent rating was assigned from May 12, 1969. Since
then, various ratings have been assigned for the left knee
disability, and several temporary total ratings have been
assigned due to surgical procedures. The left knee
disability has been evaluated as 30 percent disabling since
November 1, 1984, except for periods when temporary total
ratings were in effect.
The current claim for an increased rating for the left knee
disability was filed in April 1993. During the pendency of
this appeal, the left knee disability was a assigned a
temporary total disability rating from December 30, 1998,
through January 31, 1999, pursuant to 38 C.F.R. § 4.30.
A VA outpatient treatment record dated in November 1992 shows
that the veteran had chronic left knee pain. Another record
dated in April 1993 notes that the veteran had degenerative
joint disease of the knees. A VA kinesiotherapy report dated
in May 1993 shows that the veteran complained that at times
his left knee was so painful that he could not walk. He
reported that the pain level in the left knee was six or
seven on a scale of 0 to 10, with 10 being the worst.
A VA examination in May 1993 showed that the veteran had
multiple healed surgical scars on the left knee. There was a
palpable exostosis over the medial epicondyle. The joint
line was tender bilaterally. There was mild laxity on Drawer
testing and the medial collateral ligament was moderately
lax. There was marked crepitus on the collateral ligament
and McMurray's testing. Pivot shift testing showed crepitus
and tenderness. Range of motion of the left knee was from 0
to 98 degrees. X-rays revealed severe degenerative joint
disease of the left knee. It was noted that this X-ray
showed significant increase in the severity of the left knee
as compared with a November 1992 examination. The examiner
noted that the veteran continued to have a lot of pain in the
left knee. It would swell and bother the veteran if he
walked more than half a mile. There was a lot of grinding in
the knee and it would come close to locking. The veteran was
unable to kneel or squat and had a lot of difficulty climbing
stairs. He was unable to do any sports because of the left
knee disability. The diagnosis was severe degenerative joint
disease of the left knee with multiple surgical procedures in
the past.
With regard to the left knee, VA outpatient treatment records
dated in November 1993 show that the veteran had severe
arthritis, status post high tibial osteotomy. It was noted
that he would probably need a left knee replacement at some
point. The veteran was prescribed Ibuprofen 800 mg.
A VA examination in January 1994 showed that the left knee
range of motion was 6 to 100 degrees and the veteran reported
a pain level of 7 on a scale from 0 to 10. A radiology
report notes that the left knee had severe degenerative joint
disease with a significant degree of narrowing of the knee
joint space due to interarticular cartilaginous destruction
and spurring of the patella, femoral condyles and tibial
plateaus. It was noted that he had had six surgeries on the
left knee including a tibial osteotomy in 1986 and three
arthroscopes since then. The veteran stated that the knee
pain was constant and worsening over time. There was a lot
of grinding. The veteran also reported that he thought he
could walk at most one mile, that he could not kneel on the
left knee, that the knee became stiff if he sat for a long
time and that the knee locked and clicked, causing him to
fall.
The examination showed that he walked with a mild left
antalgic limp. He had atrophy of the left quadriceps,
measuring 4 centimeters less of circumference at mid-thigh as
compared to the right leg. The left knee had numerous, well-
healed scars. There was tenderness over the medial and
lateral joint line. He had mild laxity on Drawer testing and
crepitus on flexion and extension. McMurray's test caused
some discomfort. The diagnosis with regard to the left knee
was left knee pain secondary to severe degenerative joint
disease with worsening symptoms.
At a personal hearing in August 1994 before a hearing officer
at the M&ROC, the veteran testified that he had constant pain
in both knees and was unable to do the things he could do
before. He was taking anti-inflammatory medicine. He could
not walk or stand for prolonged periods of time. He could
not walk more than about a quarter of a mile before the knee
started to bother him. He testified that he had had six
arthroscopic surgeries on the left leg.
A VA examination in May 1996 examined only the veteran's back
disability. There were no findings pertaining to his left
knee disability. The veteran's wife submitted an affidavit
in November 1996. However, she did not discuss the veteran's
left knee disability.
A VA orthopedic examination in September 1997 showed that the
left knee range of motion was from 0 to 125 degrees. He had
relatively good ligamentous stability medially and laterally.
The cruciate ligaments appeared to be stable. He had a lot
of crepitation with motion in his knee. McMurray's test was
only partially done because the examiner could only get the
veteran to 125 degrees. The flexion to 125 degrees caused
some discomfort. Twisting of the knee to internal and
external rotation also caused some discomfort. The veteran
had numerous well-healed incisions on the left knee. The
examiner noted that the veteran would probably eventually
need to have a total knee replacement.
A VA neurology examination in September 1997 showed that the
veteran's gait and station were unremarkable except for some
limping on his left leg. The left knee was swollen and had
multiple scars. Extension of the knee was painful. Lateral
and medial compression of the knee was also painful.
Drawer's sign was negative. There was crepitance with
passive range of motion of the left knee.
The report of another VA examination in July 1998 notes that
the veteran had had a lot of problems with degenerative joint
disease of the left knee, which was getting worse. He
reported pain with any activity and grinding discomfort. The
knee would swell at times and the veteran wore a brace on the
left knee about twice a week.
Physical examination showed that he walked without a limp.
There was a bony deformity on the left knee consistent with
degenerative joint disease. He had an exostosis of the
medial femoral condyle, which was moderately tender to
palpation. The left calf measured two centimeters less than
the right calf. The left knee showed moderate tenderness to
palpation of the medial and lateral joint lines. On Drawer
testing, there were three millimeters of laxity compared to
none for the right knee. On collateral ligament stressing,
both the medial and lateral collateral ligaments showed
moderate laxity with several degrees of laxity on medial and
lateral stressing. There were pain, crepitus and palpable
slippage of the knee with those maneuvers. McMurray's
testing caused mild discomfort. On active range of motion
against resistance, there was no objective evidence of pain.
On repeated flexion and extension of the left knee in the
standing position, the veteran winced and halted after about
10 repetitions. He did a deep knee bend slowly and put more
weight on the right leg. At three-quarters of a squat, he
winced, the left knee caught, and he lost his balance. He
stood up slowly, using his hands on his thighs to assist him.
He was unable to run in place normally.
Active range of motion of the left knee was from 4 to 98
degrees. Passive range of motion of the left knee was from 0
to 118 degrees. X-ray of the left knee revealed marked
degenerative changes of all compartments of the knee with
particular involvement of the medial compartment and
patellofemoral joint. Marginal osteophytes were present
along the posterior patella, distal femur, and proximal
tibia. Several ossific/calcific bodies were evident in the
femorotibial joint. There was little, if any, left knee
effusion. All articular surfaces of the left knee remained
irregular. There were also degenerative changes of the
proximal left tibiofibular joint. Upright view demonstrated
mild genu varum deformity of the left knee.
The impression was marked degenerative arthritic change of
all compartments of the left knee, multiple intra-articular
loose bodies of the left knee, mild genu varum of left knee,
and possible slight leg length discrepancy with right knee
joint line approximately five millimeters higher than the
left.
VA outpatient treatment records dated in September and
October 1998 show that the veteran had a painful left knee.
Grating was also noted in September 1998. In October 1998,
the veteran had requested a different type of knee support.
In a statement dated in October 1998, the veteran noted that
his knee bothered him more than ever since the last VA
examination. He noted that he was given a knee brace and had
to wear it daily. Without the brace, his knee would grind
and feel very loose. He further noted that he had been
prescribed Darvon by VA for over two years and that the
medication did not take the pain away completely. He
reported that he lived in constant pain in his back, both
knees and his hips.
A report of VA X-rays taken in December 1998 notes marked
degenerative arthritic change of all compartments of the left
knee, multiple intra-articular loose bodies of the left knee
with probable small left knee joint effusion, chronic
compression deformity of the left lateral tibial plateau,
mild left genu valgum, degenerative changes of the proximal
left tibiofibular joint, and possible left bipartite patella.
On December 30, 1998, the veteran underwent left knee
arthroscopy. He had diffuse degenerative changes with
spurring throughout the knee joint, evenly distributed. Both
the medial and lateral menisci were degenerative remnants
with some cleavage tears that were debrided back. The
patellar surface was also degenerative and was debrided. The
suprapatellar pouch had one chondral loose body which was
removed. There was a medial spur in the gutter which was
debulked. The knee was pressure irrigated with gravity
drainage until clear.
In a March 1999 statement, the veteran indicated that since
the last surgery, he had had pain and was limping. He
further noted that the pain medication was not helping. He
reported that this had been his seventh surgery and he was
worse off than ever.
At a VA orthopedic examination of the veteran's left knee in
April 1999, the veteran reported that he was not sure if the
surgery in December 1998 had helped. He reported that the
left knee was still constantly painful, worse with standing
or walking. It would grind and pop a lot. The veteran also
reported that the left knee seemed to be weak. It did not
lock. He seemed to have some chronic swelling. The knee was
not red or warm, but it was stiff. The veteran reported that
the left knee tired easily and he could not climb a flight of
stairs or stand for more than an hour because of the pain.
If he walked a mile, it would really bother him. He had a
brace which he wore when he was at work or active.
The examination showed that he walked with a mild antalgic
limp on the left knee. There were healed incision scars.
The left knee was mildly warm compared to the right knee.
There was no redness. There was some mild inferior swelling.
The knee was tender to palpation along the medial and lateral
joint lines. The knee was stable on Drawer and collateral
ligament testing but had had a lot of grinding and crepitus
with those maneuvers, and McMurray's test was painful. He
had mild quadriceps atrophy on the left leg, compared to the
right. Active range of motion of the left knee was 8 to 96
degrees. Passive range of motion of the left knee was 0 to
110 degrees.
The diagnosis was degenerative joint disease, left knee,
symptoms getting worse. The examiner noted that the veteran
had had recent arthroscopy for debridement, but was still
having significant problems.
Analysis
Knee impairment with recurrent subluxation or lateral
instability warrants a 10 percent evaluation if it is slight,
a 20 percent evaluation if it is moderate or a 30 percent
evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic
Code 5257.
Under 38 C.F.R. § 4.71a, DC 5010, arthritis due to trauma and
substantiated by X-ray findings is rated as degenerative
arthritis under DC 5003. Degenerative arthritis established
by X-ray findings is rated on the basis of limitation of
motion under the appropriate diagnostic codes for the
specific joint or joints involved. 38 C.F.R. § 4.71a,
Diagnostic Code 5003.
Limitation of flexion of a leg warrants a noncompensable
evaluation if flexion is limited to 60 degrees, a 10 percent
evaluation if flexion is limited to 45 degrees, a 20 percent
evaluation if flexion is limited to 30 degrees or a 30
percent evaluation if flexion is limited to 15 degrees.
38 C.F.R. § 4.71a, Diagnostic Code 5260.
Limitation of extension of a leg warrants a noncompensable
evaluation if extension is limited to 5 degrees, a 10 percent
evaluation if extension is limited to 10 degrees, a 20
percent evaluation if extension is limited to 15 degrees, a
30 percent evaluation if extension is limited to 20 degrees,
a 40 percent evaluation if extension is limited to 30 degrees
or a 50 percent evaluation if extension is limited to 45
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.
Ankylosis of a knee warrants a 30 percent evaluation if it is
at a favorable angle in full extension, or in slight flexion
between 0 and 10 degrees. A 40 percent evaluation is
warranted if the ankylosis is in flexion between 10 and 20
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256.
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. § 4.40 concerning lack of normal
endurance, functional loss due to pain, and pain on use and
during flare-ups; the provisions of 38 C.F.R. § 4.45
concerning weakened movement, excess fatigability, and
incoordination; and the provisions of 38 C.F.R. § 4.10
concerning the effects of the disability on the veteran's
ordinary activity are for consideration. See DeLuca v.
Brown, 8 Vet. App. 202 (1995).
The veteran's recorded ranges of left knee motion throughout
the period pertinent to this claim would not justify a 30
percent evaluation under Diagnostic Code 5260 or 5261.
However, the record reflects that the veteran has significant
weakness and pain of the left knee with increased functional
impairment on repeated use. When all pertinent disability
factors are considered, the Board believes that the
limitation of motion more nearly approximates limitation of
flexion to 15 degrees than limitation of flexion to 30
degrees. Limitation of knee flexion to 15 degrees warrants a
30 percent evaluation under Diagnostic Code 5260.
In view of the evidence demonstrating that left knee
extension has repeatedly been found to be normal to only
slightly limited, even with consideration of the provisions
of 38 C.F.R. §§ 4.10, 4.40, and 4.45, the Board must conclude
that the limitation of extension does not more nearly
approximate the criteria for a 40 percent evaluation than
those for a 30 percent evaluation. Similarly, in view of the
evidence demonstrating significant remaining useful motion of
the knee, the Board also concludes that the disability does
not more nearly approximate the criteria for a 40 percent
evaluation than those for a 30 percent evaluation under
Diagnostic Code 5256.
Accordingly, a 30 percent evaluation is warranted for the
arthritis with limitation of motion.
The evaluation of the same disability under various diagnoses
is to be avoided. 38 C.F.R. § 4.14 (1999). However, the VA
General Counsel has issued a precedential opinion (VAOPGCPREC
23-97) holding that a claimant who has arthritis and
instability of the knee may be rated separately under
Diagnostic Codes 5003 and 5257, while cautioning that any
such separate rating must be based on additional disabling
symptomatology.
Evidence of moderate laxity was found on the May 1993 VA
examination, and evidence of mild laxity was found on the
January 1994 VA examination. Although the September 1997 VA
examiner described the stability of the veteran's left knee
as relatively good, evidence of moderate laxity was again
found on the July 1998 VA examination. The veteran's left
knee was found to be stable on the VA examination performed
on April 16, 1999. Therefore, the Board finds that during
the period prior to April 16, 1999, the instability of the
veteran's left knee more nearly approximated moderate than
slight, warranting a separate 20 percent rating under
Diagnostic Code 5257. However, since the veteran's left knee
was found to be stable on the VA examination on April 16,
1999, and there is no other objective evidence of instability
or subluxation of the left knee on or since that date, the
Board concludes that a separate compensable evaluation is not
warranted for the period from April 16, 1999.
The Board has also considered whether there is any other
appropriate basis for an evaluation in excess of 30 percent
or for a separate compensable evaluation. In this regard,
the Board notes that malunion of the tibia and fibula
warrants an evaluation of 30 percent evaluation if there is
marked knee or ankle disability. Nonunion of the tibia and
fibula with loose motion requiring a brace warrants a 40
percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262.
The record demonstrates that the veteran does not have
nonunion of the tibia or fibula and does not have loose
motion requiring a brace. Therefore, a higher evaluation is
not warranted under Diagnostic Code 5262.
Although the veteran does have marked knee disability, this
impairment is already considered in the evaluations discussed
above. Therefore, a separate evaluation under Diagnostic
Code 5262 may not be assigned. See 38 C.F.R. § 4.14. This
rule against pyramiding also precludes the assignment of a
separate compensable evaluation under Diagnostic Code 5258,
which authorizes a 20 percent evaluation for dislocated
semilunar cartilage with frequent episodes of "locking,"
pain, and effusion into the joint, or under Diagnostic Code
5259, which authorizes a 10 percent evaluation for removal of
semilunar cartilage if it is symptomatic. Finally, the Board
notes that Diagnostic Code 5055 is not applicable to the
facts of this case since the veteran has not undergone a
total left knee replacement.
It has been argued on behalf of the veteran that his
disability picture is exceptional and that consideration
should have been afforded to assigning an extra-schedular
evaluation. Although the veteran has undergone numerous
surgical procedures, it has been over the course of many
years and the veteran has been granted temporary total
ratings based on those surgeries. The veteran has not
required frequent hospitalization for the disability, and the
evidence demonstrates that the manifestations of the
disability are those contemplated under the schedular
criteria. In sum, there is no indication in the record that
the average industrial impairment resulting from the
disability would be in excess of that contemplated by the
assigned evaluations. Therefore, the Board has concluded
that referral of the claim for extra-schedular consideration
under 38 C.F.R. § 3.321 (1999) is not warranted.
II. Evaluation of Right Knee Disability
Facts
In a rating decision of August 1993, service connection was
granted for right knee disability. A 10 percent rating was
assigned from April 14, 1993, pursuant to Diagnostic Code
5014. In a rating decision of October 1993, a temporary
total disability rating was assigned from July 6, 1993,
through August 31, 1993, under 38 C.F.R. § 4.30, based on the
fact that the veteran had arthroscopic surgery on the right
knee in July 1993. A 10 percent rating was continued
thereafter and currently remains in effect.
A VA Kinesiotherapy report dated in May 1993 notes that the
veteran reported that his right knee was painful at times.
He stated that the right knee pain level was 5 on a scale
from 0 to 10, with 10 the worst.
A VA examination in May 1993 showed that the right knee had
no effusion. There was some joint line tenderness medially.
Drawer and collateral ligament testing was negative, as was
McMurray's test. Range of motion of the right knee was from
0 to 110 degrees. On passive flexion and extension he had a
marked amount of crepitus. The patella was somewhat tender
on compression. X-rays of the right patella revealed a very
small spur projecting from the lateral aspect of the right
patella. The examiner noted that the veteran's right knee
hurt if he was walking or doing a lot of activity. The
pertinent diagnosis was right knee pain with findings
suggestive of patellar femoral syndrome.
In July 1993, the veteran had right knee arthroscopy with
debridement. He was found to have chondromalacia with mild
degenerative joint disease. A VA outpatient treatment record
dated in November 1993 notes that the veteran had bilateral
severe knee arthritis. The physician noted that the veteran
would probably need both knees replaced at some point.
A VA examination in January 1994 showed range of motion of
the right knee from 0 to 112 degrees, with pain level of 5,
on a scale from 0 to 10. X-rays of the right knee showed no
evidence of degenerative joint disease or other abnormality.
The veteran reported that pain in the right knee came and
went, and that it might swell at times. On examination, the
right knee showed no tenderness. It was stable on Drawer,
collateral ligament and McMurray's testing. The diagnosis
was right knee pain, probably related to altered mechanics of
his gait because of the left knee arthritis.
At the personal hearing in August 1994 before a hearing
officer at the M&ROC, the veteran testified that he had
constant pain in both knees and could not do the things he
was able to do before. He could not walk or stand for
prolonged periods of time. He could walk only about a
quarter of a mile. He was taking anti-inflammatory medicine
four times a day.
A VA examination in May 1996 examined only the veteran's back
disability. There were no findings pertaining to his right
knee disability. The veteran's wife submitted an affidavit
in November 1996. However, she did not discuss the veteran's
right knee disability.
A VA orthopedic examination in September 1997 showed that the
veteran had range of motion of the right knee from 0 to 132
degrees. There was good ligamentous stability. McMurray's
test caused some mild discomfort but did not show any
definite clicks. The examiner noted that the veteran had
quite a bit of crepitation on the right side. The examiner
further noted that the right knee had some degenerative
changes as shown on X-ray.
At a VA neurology examination in September 1997, the examiner
noted that the veteran had some right knee pain with
maneuvers that stressed the knee joint. The pertinent
diagnosis was right knee degenerative arthritis.
At a VA examination in July 1998, the veteran reported that
his right knee did not lock or give way, and there was mild
aching in it at times. The veteran did not wear a brace on
the right knee. On examination, the right knee showed no
swelling or deformity. No increased heat or erythema was
noted. The knee was nontender to palpation. Drawer,
collateral ligament, and McMurray's testing were negative.
There was no objective evidence of pain on active range of
motion of the right knee. Active range of motion of the
right knee was 6 to 120 degrees. Passive range of motion of
the right knee was 0 to 132 degrees. X-rays of the right
knee showed a virtually normal knee with only minimal, if
any, degenerative change along the posterior patella. The
diagnosis with regard to the right knee was arthralgias. The
examiner noted that the examination was negative and the
veteran did not have significant symptoms because of the
right knee.
In a statement dated in October 1998, the veteran noted that
he lived in constant pain in both knees. He further stated
that, if not for pain medication, he would not be able to do
the things he must do to survive.
X-rays in December 1998 revealed that the right knee remained
virtually normal and unremarkable except for the suggestion
of irregularity and possible slight fragmentation along the
posterior surface of the patella, and minimal marginal
hypertrophic change at the posterior patella.
In a statement dated in March 1999, the veteran noted that
since his December 1998 surgery on his left knee, he had to
stand with most of his weight on his right leg and it was
causing more pain in the right knee.
The veteran underwent another VA orthopedic examination in
April 1999. Only the veteran's left knee and feet were
examined. There were no findings relative to the veteran's
right knee disability.
Analysis
Initially, the Board observes that in a claim involving
disagreement with the initial rating assigned following a
grant of service connection, separate ratings can be assigned
for separate periods of time, based on the facts found. See
Fenderson v. West, 12 Vet. App. 119 (1999).
The veteran's right knee disability has been rated by analogy
to osteomalacia. See 38 C.F.R. § 4.20 (1999). Under
Diagnostic Code 5014, osteomalacia is rated on limitation of
motion of the affected parts, as degenerative arthritis.
As noted above, limitation of flexion of a leg warrants a
noncompensable evaluation if flexion is limited to 60
degrees, a 10 percent evaluation if flexion is limited to 45
degrees, or a 20 percent evaluation if flexion is limited to
30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.
Limitation of extension of a leg warrants a noncompensable
evaluation if extension is limited to 5 degrees, a 10 percent
evaluation if extension is limited to 10 degrees, or a 20
percent evaluation if extension is limited to 15 degrees.
38 C.F.R. § 4.71a, Diagnostic Code 5261.
Also, as noted above, in determining the degree of limitation
of motion, the provisions of 38 C.F.R. § 4.40 concerning lack
of normal endurance, functional loss due to pain, and pain on
use and during flare-ups; the provisions of 38 C.F.R. § 4.45
concerning weakened movement, excess fatigability, and
incoordination; and the provisions of 38 C.F.R. § 4.10
concerning the effects of the disability on the veteran's
ordinary activity are for consideration. See DeLuca v.
Brown, 8 Vet. App. 202 (1995).
The objective medical evidence shows that the veteran has
consistently been found to have full passive extension of the
right knee with active extension to 6 degrees or less.
Active and passive flexion of the right knee has been
repeatedly found to be 110 degrees or more. Although
tenderness, pain and crepitus have been occasionally found,
the physical examinations of the veteran's right knee have
otherwise been essentially unremarkable. It was specifically
determined at the July 1998 VA examination that there was no
objective evidence of pain and that there were no other
significant right knee symptoms. As recently as December
1998, an X-ray examination of the veteran's right knee
disclosed that it was virtually normal. Therefore, when all
pertinent disability factors are considered, the Board must
never the less conclude that the limitation of motion does
not more nearly approximate the criteria for a 20 percent
evaluation than those for a 10 percent evaluation under
Diagnostic Code 5260 or 5261.
The medical evidence shows that the veteran's right knee has
been repeatedly found to be stable. No evidence of
subluxation has been reported. In sum, there is no basis for
concluding that a compensable rating is warranted under
Diagnostic Code 5257, which, as discussed above, provides the
criteria for evaluating knee impairment with instability and
subluxation.
The Board also notes that none of the other Diagnostic Codes
for evaluating knee impairment is applicable to the facts of
this case. Accordingly, a schedular evaluation in excess of
10 percent is not in order.
In reaching this conclusion, the Board has considered the
veteran's March 1999 statement indicating that since the
December 1998 surgery on his left knee he had been bearing
more weight on his right knee and experiencing more right
knee pain. The record reflects that the veteran was provided
multiple VA examinations of his right knee from 1993 to 1998,
with the most recent VA examination in July 1998. The VA X-
ray study in December 1998 did not disclose any significant
deterioration in the veteran's right knee, and the veteran
has not identified any treatment records or other evidence
suggesting that there has been any significant change in the
functional impairment associated with the disability since
the July 1998 VA examination. Moreover, the functional
impairment contemplated by the assigned evaluation of 10
percent is in excess of that evidenced by the July 1998 VA
examination, and the veteran did not allege any specific
functional impairment in his March 1999 statement indicative
of disability in excess of that contemplated by the assigned
evaluation. Consequently, the Board has concluded that
further delay of the appellate process for the purpose of
providing the veteran with another VA examination is not in
order.
It has been argued on behalf of the veteran that his
disability picture is exceptional and that consideration
should have been afforded to assigning an extra-schedular
evaluation. The evidence does not show that the veteran has
required frequent periods of hospitalization for this
disability or that the manifestations of the disability are
unusual or exceptional. In fact, there is no indication in
the record that the average industrial impairment resulting
from the disability would be in excess of that contemplated
by the assigned evaluation. Accordingly, referral of the
claim for extra-schedular consideration under 38 C.F.R. §
3.321 is not in order.
III. Evaluation of Low Back Disability
Facts
In April 1993, the veteran filed a claim for service
connection for a low back disability and the claim was
granted in a rating decision dated in August 1993. A 10
percent rating was assigned from April 14, 1993, pursuant to
Diagnostic Code 5292. The veteran disagreed with that
initial evaluation of the low back disability. In a rating
decision of January 1995, a 20 percent rating for low back
disability was assigned from April 14, 1993, under Diagnostic
Codes 5292 and 5295. In a rating decision of October 1996, a
40 percent rating for the low back disability was assigned
from February 21, 1996, pursuant to Diagnostic Codes 5292 and
5295.
A VA outpatient evaluation report dated in April 1993 shows
that the veteran reported constant low back pain in the
middle of his back. Deep tendon reflexes were equal and
active at the knees and equal but hypoactive at the ankles.
There was no definite muscle wasting or decreased muscular
strength noted except some mild wasting of the left thigh.
The impression was left sacroiliac joint strain with no
evidence of radiculopathy.
A VA kinesiotherapy report dated in May 1993 notes that the
veteran verbalized lumbar spine pain to be 7 in a range from
0 to 10, with 10 being the worst.
At a VA examination in May 1993, the veteran had some
tenderness to palpation in the right paraspinous lumbar
musculature, though the spine itself was only mildly tender.
There was no sciatic notch tenderness. Straight leg raising
was negative. Sensory and motor functions in the lower
extremities were intact and knee jerks were equal. There was
some mild tenderness to palpation over the right greater
trochanter. Range of motion of the lumbar spine was flexion
forward to 90 degrees, backward to 28 degrees, lateral motion
to the right was 32 degrees, lateral motion to the left was
26 degrees, rotation to the right and left was noted to be
milady restricted. It was noted that he had pain in the
right low back. The diagnosis relating to the back was right
low back pain, mechanical versus degenerative joint disease.
A VA outpatient treatment record dated in April 1993 notes
that the veteran had chronic low back pain. It was further
noted that sitting on long car rides and climbing stairs
bothered his back.
At a VA examination in January 1994, range of motion of the
lumbar spine was flexion to 58 degrees, extension to 24
degrees, lateral flexion to the right of 28 degrees, lateral
flexion to the left of 22 degrees, and rotation to the right
and left of 25 degrees each direction. Pain level was
reported as 10 on a scale from 0 to 10, 10 being the worst.
A radiology report of the lumbosacral spine notes moderate
degree of spurring of the vertebral bodies representing
osteoarthritis. X-ray also showed minimal scoliosis of the
lumbar spine with convexity to the left. Examination of the
low back revealed tenderness over L5-S1 and some over the
paraspinous muscles. The sacroiliac joints were minimally
tender. The sciatic notch was non-tender. Straight leg
raising was negative. The veteran had good motor and sensory
function of the lower extremities, except for the quadriceps
weakness of the left. The diagnosis relating to the back was
low back pain, increasing symptoms over time. X-rays showed
degenerative joint disease.
At the personal hearing in August 1994, the veteran testified
that he could not do any prolonged standing because of his
back. Walking bothered his back also. In addition, he
testified that he could not pick up his two-year old
granddaughter.
Additional VA outpatient treatment records show that in
December 1994, the veteran complained of back aches and was
prescribed Darvon to help with back and leg pain.
A record dated in August 1995 shows that the veteran
complained of acute/chronic, mid/lower back pain.
Examination showed paraspinous muscle spasm and lumbosacral
and bilateral sacroiliac tenderness. Straight leg raising
sitting and supine were negative.
A record dated in January 1996 shows that the veteran was
evaluated for low back pain, radiating into the left leg. He
had positive straight leg raise and burning dysesthesia in
the posterior lateral aspect of the left leg. A radiology
report dated in January 1996 notes that there was evidence of
moderately severe degenerative arthritis involving multiple
lumbar vertebral levels. Osteophyte formation was seen
incompletely bridging multiple intervertebral disc spaces,
particularly L2-3 and L3-4. There was right marginal
intervertebral disc narrowing across L3-4 and L4-5.
A computed tomography (CT) scan of the lumbar spine was done
in February 1996. The report notes apparent left
posterolateral disc protrusion at the left lateral recess of
S1, causing compression of the adjacent nerve root. The CT
scan also showed moderately severe degenerative disc disease
at L4-5 with borderline narrowing of the thecal sac secondary
to diffuse bulging of the anulus fibrosus which could cause
some nerve root encroachment at the level of the lateral
recesses. There was no obvious herniated nucleus pulposus at
that level. In addition, the CT scan showed osteoarthritis
of several lumbar facet joints, most evidence at L4-5 on the
left and at L5-S1 bilaterally. The CT scan also showed
evidence of mild degenerative disc disease and adjacent
discogenic degenerative osseous changes at other levels of
the lumbar spine.
A treatment record dated in February 1996 notes that the CT
scan was read as being positive for a fairly large disk
herniation, asymmetric to the left consistent with the
veteran's symptoms.
At a VA examination in May 1996, range of motion of the
lumbar spine was flexion to 25 degrees, extension to 6
degrees, lateral flexion to the right of 20 degrees, lateral
flexion to the left of 17 degrees, and rotation to the right
and left of 5 degrees in each direction. The veteran
reported that the pain level was 8 on a scale from 0 to 10,
10 being the worst, that his back had been getting worse in
the last year, that his entire low back hurt and that the
pain radiated down posteriorly to both knees. He also stated
that he was stiff and sore when getting up in the morning,
that sitting or standing for an hour was really uncomfortable
and that by the end of the day, his back was really stiff and
sore, and it was difficult for him to walk. He had trouble
getting comfortable at night and was taking muscle relaxers
and Darvon.
On examination, he changed positions slowly and with evident
discomfort getting in and out of the chair. His gait was
normal, though he tended to hold himself stiffly. On
palpation, the back was tender in the mid and lower lumbar
spine and on the paraspinous muscles. There was mild spasm
on the left. The sacroiliac joints were mildly tender. His
range of motion was quite diminished and he was quite
uncomfortable on the limits of his range of motion. Straight
leg raising was positive bilaterally at 45 degrees. There
was no sensory loss of the lower extremities and motor and
reflex functions were full and symmetric. The assessment was
increasing low back pain symptoms with some leg radiation
secondary to degenerative joint disease.
A VA radiology report dated in June 1996 shows that the
veteran had degenerative disk disease with disk bulging at
L2-3, L3-4, and L4-5, with no impingement of the L5 or S1
nerve roots appreciated.
A VA medical record dated in June 1996 notes that magnetic
resonance imaging (MRI) showed no disk herniation. Straight
leg raising was negative. There was no evidence of
radiculopathy.
In a statement from the veteran, received in November 1996,
he noted that in regard to his back, he had constant
discomfort and that walking, sitting and lying down were
unbearable. He also indicated that sleeping was difficult
due to the pain in his back. He noted that he was unable to
do any lifting without great pain and he could only hold his
grandchildren while sitting.
An affidavit from the veteran's wife was received in November
1996. Her statement, however, discusses other medical
problems regarding the veteran and does not mention his back
disability.
A VA outpatient treatment record dated in December 1996 shows
that the veteran had paraspinous muscle spasms with focal
tenderness over the muscles and left sacroiliac, and to a
lesser extent over the lumbosacral area. Straight leg
raising caused back pain and hamstring tightness but no
radiculopathy.
A VA orthopedic examination report dated in September 1997
shows that the veteran had a normal-appearing back on
examination. He had almost full forward flexion. He was
able to bring his fingertips to within about eight inches of
the floor. He had slight limitation of side bending and
slight limitation of back bending. He had some tenderness to
palpation and some mild discomfort with straight-leg raising
at about 90 degrees bilaterally. He had good patellar
reflexes bilaterally and he had absent ankle jerks
bilaterally. He was able to walk on his toes and heels
without any difficulty. There were no sensory or motor
deficits present. It was noted that his back had a lot of
degenerative changes shown by X-ray, CT scan and MRI with
some encroachment of a couple of the nerve roots.
A VA neurology examination report dated in September 1997
shows that the veteran reported being unable to tolerate
prolonged sitting or standing due to low back pain. He had
degenerative changes and bulging discs documented by MRI.
However, he was not considered a surgical candidate. Low
back range of motion was 30 to 40 degrees of flexion.
Extension was 20 to 30 degrees and painful. Lateral flexion
was limited bilaterally. Rotation was also mildly limited
bilaterally. The veteran had palpation tenderness mostly in
the left paravertebral muscles in the lumbosacral area.
Straight leg raising was essentially negative except for
local pain in the lumbosacral area.
A VA examination report dated in July 1998 notes that the
veteran reported that problems with his low back were getting
worse. The pain from the low back radiated towards the hips
but not into the legs. Turning and lifting aggravated the
back. He took Darvon and Motrin for his back pain. He did
not have a back brace.
Physical examination showed that his low back had loss of
normal lumbar lordosis. Mild spasm of the paraspinous
muscles were noted. There was mild tenderness to palpation
of the lumbar spine. Straight leg raising was negative. He
had full motor and sensory function of the lower extremities.
On active range of motion, he winced at 10 degrees of
extension and 20 degrees of flexion. Active range of motion
of the lumbar spine was 62 degrees of flexion, 20 degrees of
extension, 26 degrees of lateral flexion to the right, 30
degrees of lateral flexion to the left, and 25 degrees of
rotation both to the right and left.
The report of July 1998 X-rays of the lumbar spine notes
moderate hypertrophic spondylosis of the lumbar spine, with
relative sparing of L1-2 and L5-S1, slight progression of
degenerative disc disease at L3-4 and L4-5 since January
1996, suggestion of slight increase in the degree of mild
levoconvex scoliosis of lower lumbar spine with chronic
kyphotic deformity at thoracolumbar junction, chronic mild
anterior wedge deformity of L2 centrum, mild degenerative
changes of L5-S1 facet joints bilaterally, and mild
degenerative retrolisthesis of L3 on L4.
The examiner's diagnosis was degenerative joint disease of
the back.
Another VA orthopedic examination was completed in April
1999. However, only the veteran's left knee was examined and
there were no findings regarding his back disability.
Analysis
Degenerative arthritis established by X-ray findings is rated
on the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
Pursuant to Diagnostic Code 5292, moderate limitation of
motion of the lumbar spine is evaluated as 20 percent
disabling and severe limitation of motion of the lumbar spine
is evaluated as 40 percent disabling.
Ankylosis of the lumbar spine warrants a 40 percent
evaluation if it is at a favorable angle or a 50 percent
evaluation if it is at an unfavorable angle. 38 C.F.R.
§ 4.71a, Diagnostic Code 5289.
Under Diagnostic Code 5293, a 20 percent rating is assigned
for moderate intervertebral disc syndrome with recurring
attacks. A 40 percent rating is assigned for severe
intervertebral disc syndrome with recurring attacks and only
intermittent relief. A maximum 60 percent rating is assigned
for pronounced intervertebral disc syndrome with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief.
Pursuant to Diagnostic Code 5295, a 20 percent rating is
assigned for lumbosacral strain with muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
a standing position. A maximum 40 percent rating is assigned
for severe lumbosacral strain with listing of the whole spine
to the opposite side, positive Goldthwaite's sign, marked
limitation of forward bending in a standing position, loss of
lateral motion with osteo-arthritic changes, or narrowing or
irregularity of the joint space, or some of the above with
abnormal mobility on forced motion.
As discussed previously, in determining the degree of
limitation of motion, the provisions of 38 C.F.R. § 4.40
concerning lack of normal endurance, functional loss due to
pain, and pain on use and during flare-ups; the provisions of
38 C.F.R. § 4.45 concerning weakened movement, excess
fatigability, and incoordination; and the provisions of
38 C.F.R. § 4.10 concerning the effects of the disability on
the veteran's ordinary activity are for consideration. See
DeLuca v. Brown, 8 Vet. App. 202 (1995).
In addition, the evaluation of the same disability under
various diagnoses is to be avoided. 38 C.F.R. § 4.14.
Based on a review of the pertinent evidence of record, the
Board finds that a rating in excess of 20 percent is not
warranted for the period prior to February 21, 1996. The
medical evidence during that period shows no more than
moderate limitation of motion. Range of motion of the lumbar
spine at the May 1993 VA examination was only 5 degrees less
than normal flexion, only 7 degrees less than normal
extension backward, 8 degrees less than normal right lateral
flexion, 14 degrees less than normal left lateral flexion,
and only mild restriction of rotation to both right and left
was found. At the January 1994 VA examination, the veteran
had increased limitation of motion of the lumbar spine, but
all ranges were more than half of the normal ranges of
motion. Although the veteran reported pain level of 10, the
examination showed negative straight leg raising, non-tender
sciatic notch, only minimally tender sacroiliac joints, and
some tenderness over the L5, S1 area and the paraspinous
muscles. He also had good motor and sensory function of the
lower extremities, except for the left quadriceps weakness.
Increased functional impairment due to pain, incoordination,
excess fatigability or weakness was not reported. A VA
outpatient treatment record dated in August 1995 shows that
the veteran had paraspinous muscle spasm and lumbosacral and
sacroiliac tenderness, but straight leg raising was negative.
A January 24, 1996, VA outpatient treatment record notes that
the veteran was evaluated for low back pain radiating into
the left leg. He had positive straight leg raising and
burning dysesthesia into the posterior lateral aspect of the
left leg. A VA radiology report also dated January 24, 1996,
notes evidence of moderately severe degenerative arthritis
involving multiple lumbar vertebral levels. It was noted
that the overall appearance of the lumbar spine suggested
minimal progression of degenerative disease in comparison
with films in January 1994. However, none of these records
provide specific information concerning the functional
impairment due to the disability.
In sum, there is no indication in the medical evidence for
the period prior to February 21, 1996, that the limitation of
motion more nearly approximated severe than moderate, or that
the disability more nearly approximated the criteria for a 40
percent evaluation than a 20 percent evaluation under
Diagnostic Code 5293 or 5295.
The CT scan of the lumbar spine on February 21, 1996, showed
disc protrusion at S1 causing nerve root compression,
moderately severe degenerative disc disease at L4-5,
osteoarthritis of several lumbar facet joints, and mild
degenerative disc disease and adjacent discogenic
degenerative osseous changes at other levels of the lumbar
spine. This report does not provide specific information
concerning the functional impairment due to the service-
connected low back disability.
The May 1996 VA examination confirmed the presence of
increased disability. The examiner noted that there was
evident discomfort when the veteran got in and out of the
chair. The veteran held himself stiffly while walking. The
back was tender and there was mild spasm on the left. The
sacroiliac joints were mildly tender. The examiner noted
that the range of motion was quite diminished and that the
veteran was quite uncomfortable on the limits of his range of
motion. Flexion of the lumbar spine was only 25 degrees,
extension 6 degrees, lateral flexion to the right 20 degrees,
lateral flexion to the left 20 degrees, and rotation to both
right and left only 5 degrees. The pain level was noted to
be 8 out of 10. In addition, straight leg raising was
positive bilaterally at 45 degrees.
However, the assigned evaluation of 40 percent contemplates
the presence of severe back disability. As noted previously,
40 percent is the maximum evaluation possible for limitation
of motion of the lumbar spine or lumbosacral strain. The
record reflects that the veteran continues to have
substantial useful motion of the lumbar spine so the
disability does not more nearly approximate the criteria for
higher evaluation under Diagnostic Code 5289.
Although the veteran has been found to have disc disease and
some evidence of nerve root impingement is of record, the
presence of radiculopathy has not been confirmed. Sensory
and motor functioning in the lower extremities has been
repeatedly described as normal. Therefore, there is no
appropriate basis for concluding that the disability more
nearly approximates pronounced intervertebral disc syndrome
than severe intervertebral disc syndrome. Accordingly, a
higher evaluation is not warranted under Diagnostic Code
5293.
Finally, the Board notes that the assignment of separate
compensable ratings under the above diagnostic codes is not
warranted because to do so would result in the rating of the
same disability under various diagnoses. 38 C.F.R. § 4.14.
It has been argued on behalf of the veteran that his
disability picture is exceptional and that consideration
should have been afforded to assigning an extra-schedular
evaluation. The record does not support this contention.
Rather, it shows that the disability has not necessitated
frequent periods of hospitalization and that the
manifestations of the disability are those contemplated by
the assigned evaluations. Therefore, referral of the claim
for extra-schedular consideration under 38 C.F.R. § 3.321 is
not warranted.
ORDER
The veteran's left knee disability warrants a 30 percent
evaluation for arthritis with limitation of motion; during
the period prior to April 16, 1999, the veteran's left knee
disability also warrants a separate 20 percent evaluation
based on instability. To this extent the appeal is granted,
subject to the criteria governing the payment of monetary
awards.
Entitlement to a rating in excess of 10 percent for right
knee disability is denied.
Entitlement to a rating in excess of 20 percent for the low
back disability from April 14, 1993, through February 20,
1996, or an evaluation in excess of 40 percent for low back
disability from February 21, 1996, is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
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